Turkey’s draft constitutional amendments: harking back to 1876?

Detailed
regulations in the draft raise the prospect of a possible perpetual state of
emergency hinging on a perception of personal threat.

AKP lawmaker Abdulhamit Gul, right, and MHP lawmaker Mehmet Parsak speak to the media about the constitutional amendment bill in Ankara, Turkey, Saturday, Dec. 10, 2016. Burhan Ozbilici/Press Association. All rights reserved.In the last month
of 2016, Turkey’s ruling Justice and Development Party (AKP) and the fourth
biggest party, the National Movement Party (MHP) unveiled a controversial new draft constitution
which aims at a total system change. Initially, the most striking changes include
the strengthening of the presidency with several new powers and no accountability
to the judiciary. Furthermore, the way is cleared for Mr. Recep Tayyip Erdoğan
to rule the country until 2029, and who knows – maybe even longer. According to
the two parties’ leading figures the primary objective of the proposed
constitutional amendment is to establish sustainable stability by erasing the components
of military and bureaucratic tutelage in Turkey[1],
as if Turkey’s dominant and hegemonic leadership were fundamentally different in
nature.

2016 was one of
the most difficult years for the people of Turkey. More than ten terrorist blasts occurred in big cities
including İstanbul and Ankara. The eight MP’s of the Peoples’ Democratic Party
(HDP) got arrested, including co-leaders Selahattin Demirtaş and Figen Yüksekdağ, Turkish lira took
a battering as Turkey’s GDP shrunk by 1.8 per cent in the third quarter, and the
economy turned in its worst performance since 2009. Last but certainly not
least, on the night of July 15, Turkey’s army attempted a coup d’état primarily against Erdoğan, and the
AKP government. Despite the fact that the coup was prevented almost on the same
day, 265 people lost their lives and more than 3000 were wounded.

Five days after
the coup attempt, the AKP government declared a state of emergency for three
months which was later extended for another three months. However, in nature
and scale the measures far exceeded any justifiable response to the coup
attempt. Within the first three months of the state of emergency, 35 medical
establishments, 934 private teaching institutions, 109 private student
dormitories, 104 foundations, 1125 associations, 15 private universities, 19
unions, 45 newspapers, 15 journals, 18 TV stations, and 29 publishing houses were shut down.

After five months
of exceptional measures taken under the blanket of the state of emergency, AKP,
the ruling party and its collaborator MHP drafted a constitution without the
consent of the other parties in the Parliament. This means that if the draft becomes
Turkey’s constitution after due process, it will be both majoritarian and
exclusionist in nature. The Republican Peoples’ Party (CHP) and the HDP, the two leading opposition parties in Parliament, and
nearly 50% of public opinion according to the polls, vehemently oppose transferring
Turkey’s executive authority from the Parliament to a presidency — which they claim
would establish a dictatorship under Mr. Erdogan. They also allege that the
proposal weakens existing incentives for political compromise by
guaranteeing one-party rule, destroying minority parties and weakening checks-and-balances. Furthermore, the
proposed constitution amendments are aimed at a structural regime change that
would probably deepen polarisation instead of solving some deep-seated social
and political disputes.

What is new in the proposed constitution?

Prime
Minister Mr. Binali Yildirim said to the press on
December 10, 2016, that the amendments meant an end to coalition governments,
adding that “Parliament ... is being
strengthened, while the presidency, in charge of the executive branch, is being
restructured to end conflicts between branches… There will only be strong
leadership now”. These statements constitute a certain irony since there is
no room for a prime minister in the proposed draft. The
amendment, which was submitted on the same day by
316 signatures to the Speaker of the Parliament for subsequent presentation to Parliament,
grants the President sole authority to issue decrees, declare states of
emergency, rule the country with resolutions during states of emergency, and
appoint public officials as well as half of the high judges.

First
of all, according to the draft, the President will have the power to issue
presidential decrees on issues related to executive power; and neither an
empowering law nor a ratification (except in times of a state of emergency) to
be issued by the Parliament is required for those presidential decrees.

However,
fundamental
rights, individual rights and duties included in the first and second chapters
and the political rights and duties listed in the fourth chapter of the second
part of the Constitution, shall not be regulated by presidential
decree. Any regulation specifically required by the
Constitution to be legislated on by the parliament shall not fall within the
scope of presidential decrees. If the Parliament issues a law on that specific
topic, the presidential decree shall become null and void.

Nevertheless,
it is fair to say that the draft “hints” at a sustainable state of emergency in
which Turkey will be governed mostly by executive orders. Furthermore, this
regulation reveals a new paradox and a very probable clash of powers, since the
current Constitution’s Article 7 giving legislative prerogative to the
Parliament is still in force. Reading the draft however, even the powers of Parliament
with respect to legislation look questionable. Powers granted to the President
to send laws back to
the Parliament that, in whole or in part, he deems unsuitable for promulgation constitute
in effect a veto power. In order to adopt a law that has been sent back by the
President for reconsideration, the Parliament needs 301
votes in a proposed 600-seat parliament, which has 550 members in its current
configuration. This means that the Parliament will not be able to resist the
initial legislation.

Secondly,
according to the draft, the President shall have the sole authority to declare a
state of emergency. The state of emergency in the draft covers martial law as
well as the state of emergency regulations that are present in the current Constitution.
The President shall also have the power to rule the country during a state of
emergency by exercising presidential decrees. With the request of the President,
parliament may decide to extend the period for up to four months. In the event
of a war, this four-month time limit will not apply.These detailed regulations in the draft raise the prospect of a
possible perpetual state of emergency hinging on a perception of personal
threat.

Furthermore,
the draft requires that the President be given the authority to restructure all
ministries and public institutions. “The authorities and responsibilities of
the public institutions and organizations within the scope of the central
administration are regulated by presidential decree,” the amendment reads. This means that if
the President gets to thinking that a ministry, let us say for instance the ministry
of education, is not needed for one reason or another, he may abolish this
simply by issuing a presidential decree. Criteria for appointments of senior
civil servants will also be arranged by presidential decree. Moreover, since a
definition of “senior civil servant” is yet to be drawn up, chancellors of
universities, police heads and military force commanders may find themselves apparently
caught in this bind.

Additionally,
the High Council of Judges and Prosecutors (HSYK) will be reduced from 22 to 12 members,
while the president of the Council shall still be the Minister of Justice. The
President shall appoint half of the members of the Board directly, while the
other half shall be elected by the Parliament. The High Council of Judges and
Prosecutors run all proceedings regarding the admission of judges and public
prosecutors of civil and administrative courts into the profession, their terms
of appointment, transfer to other posts, the delegation of temporary powers,
promotion and promotion to the top jobs, decisions concerning those considered
professionally unworthy, the imposition of disciplinary penalties and removal
from office. It shall also take final decisions on proposals by the Ministry of
Justice concerning the abolition of a court, or changes to the territorial
jurisdiction of a court. This means that if the President and the majority of
the Parliament happen to be from one political party, a single authority shall elect
the members of high judicial bodies, since the President will be able to keep
his position as head of a ruling political party.

The scope for the
accountability of the President does also get expanded. Under this proposed draft,
impeachment proceedings against the President shall be commenced by the
signatures of 301 deputies in the proposed 600-seat parliament. Parliament will
be able to set up a commission of inquiry by secret ballot of 360 deputies. If
the inquiry commission decides to send the President to the Supreme Court to
face trial, the President will only be tried following a secret ballot of 400 deputies. These
provisions shall also apply for proposals to be brought to the Parliament after
the President’s term ends. In short, this procedure for ensuring the accountability
of the presidency may as well be regarded as inapplicable.

Apart from various amendments
which will be focused on separately, like lowering the eligible age for being a
deputy from 25 to 18, a last regulation to be mentioned in the draft is about re-election.
Currently the elections are held every four years, whereas the draft provides for
it to be every five years – for both the Parliament and for the president on
the same day.

Currently, Parliament may
decide
to hold a new election before the termination of an election period by a vote
of 139 deputies, whereas the draft requires three fifths (360) of the proposed 600-seat parliament. This apparently offers
only the slimmest possibility of going to an
election in spite of the President. Elections may be renewed according
to the decision taken by the President who shall have the right to be elected
twice. If the President makes a call for a new
parliament during his or her second term, he or she will be at liberty to
pursue candidacy for a third time. There seems to be no obstacle in the draft
for this process to be renewed by the end of each term; the President thereby enjoying
his or her position for as long as he or she lives.

Is the proposed Constitution brand-new?

The first written constitution in
Turkish history was adopted on 23 December 1876.
This constitution, which carried the name of Fundamental Law, was not the
result of a movement based on the will of the people, but was drawn up by the
"Young Ottomans", the name given to the intellectuals who retained a
rather strong influence over the sultan. According to the 1876 Constitution,
unconditional, unrestricted sovereignty belonged to the Ottoman Family. The sultan's
person was "sacred". Legislative and executive powers belonged to the
sultan. The judicial power could be considered independent, but the right to grant
"amnesty" definitely belonged to the sultan. All the basic rights
were recognized for citizens excluding the freedom to gather, form political
parties or organizations. However, as it was possible to limit these rights by
legal means and because there was no rule governing this, there was no legal
guarantee for basic rights and freedoms. Also, the life, goods, honour and
immunity of the homes of citizens were guaranteed "within the law".
Still, the sultan, as the result of a police investigation, could exile people
abroad with the justification that they harmed the state. Thus, the judicial
guarantee was also deeply flawed.

Ahmet Erdi Öztürk is a research assistant at the University
of Strasbourg, Faculty of Law, Social Science and History, Strasbourg, France.
He studied at Barcelona Autonoma University, Political Science Department (MRes
degree). His selected publications in English, Spanish and German include "Turkey’s Diyanet under
AKP Rule: from Protector to Imposer of State Ideology?”,Southeast
European and Black Sea Studies, and articles and book chapters forthcoming from International Journal of Middle East Studies
and Brill. He co-edited with Bahar Baser, “Authoritarian Politics in Turkey: Elections, Resistance and the AKP”, IB Tauris 2017.

İştar Gözaydın is a professor of law
and politics who received her MCJ (Master of Comparative Jurisprudence) at New
York University, School of Law (1987); and Ph.D. at Istanbul University (1992).
Gözaydın is a founder member of the executive committee of the Helsinki
Citizens Assembly, a human rights organization in Turkey. Professor
Gözaydın was a research fellow at the University of London, Birkbeck College in
2009. Gozaydin’s publications include “Management of Religion in Turkey”: the Diyanet and Beyond” in Özgür Heval
Çınar & Mine Yıldırım (ed.s): Freedom
of Religion and Belief in Turkey, Cambridge Scholars Publishing, Newcastle upon Tyne 2014, 10-35;
“Ahmet Davutoğlu: Role as an Islamic Scholar Shaping Turkey’s Foreign Policy”
in Nassef Manabilang Adiong (ed.):
Islam
and International Relations: Diverse Perspectives, Cambridge Scholars Publishing,2013;
“Diyanet İşleri Başkanlığı,” in John L. Esposito (ed): Encyclopedia of the Islamic World, Oxford University Press, February 2009; “The Fethullah Gülen Movement
and Politics in Turkey : a chance for Democratization or a Trojan Horse?:” Democratization, vol.
16
no. 6 (December 2009), 1214-1236.

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